The Electoral College: What Were Those Guys Thinking?

Hey kids, do you know what time it is? It's 2008! Yes, it's time for our
great national quadrennial agonizing over the Electoral College. My purpose here
isn't to argue for or against it so much as try to explain why we have it. There
doesn't seem to be a whole lot on this subject. There's lots on how it works and
what's right or wrong with it, but very little on why the system was chosen in
the first place. The title of this page is to be taken literally: what were the
framers of the Constitution thinking when they designed this system? We can begin by tackling one of
the most pervasive misconceptions about the Constitution.

The Constitution Did Not Create a Democracy

The word "democracy" appears nowhere in the Constitution. Instead, the
Constitution requires that the States be guaranteed a republican form of
government. A republic is a government where decisions are made by elected
representatives rather than direct vote. Wholly apart from the mechanical
difficulty of holding popular votes on national legislation 200 years ago, a
republican form of government seeks to have decisions made by people who have
the time and intelligence to make informed choices. Meh. So how's that been
working?

A republic need not be democratic. The Venetian Republic of the Renaissance
wasn't. The representatives were selected by the wealthy class, and they'd
better act as their backers wished, because nobody was better at back-stabbing,
figuratively and literally, than the Venetian elite. The Soviet Union styled
itself a union of republics, and it was, in the sense that laws were debated by
representatives, but the representatives were chosen by the Communist Party and
rubber stamped by the voters, and it wasn't democratic. All of the "democratic"
nations of the world, including the U.S., are actually democratic republics.

(Actually, it's hard to have a pure democracy in anything bigger than a model
railroad club or small village. The mechanics of getting enough people together
every time there's an important decision to be made are just too daunting. So
"democratic" countries will almost invariably be democratic republics, and it's
understandable why people might not appreciate the distinction. But it is an
important one, and critical to making sense of the Electoral College.)

The Founding Fathers didn't trust anybody with absolute power, so just about every decision-making function in
the Constitution is either divided into multiple steps that have to be performed
by different bodies, or is split among parallel structures. So laws have to be
passed by Congress but signed by the President. The President nominates Supreme
Court justices, but they have to be approved by Congress. There are virtually no
one-shot decisions of any consequence. The one exception is that Congress has the
power to set its own rules. 'Nuff said?

Congress is the type example of parallel decision making structures. One
house is elected directly by the people and is proportional to population. The
other was originally appointed by the state legislatures (until the 17th
Amendment in 1913) and gives the states equal representation. So one house is
democratic, the other allowed the states to decide how to select members. The
two different modes of apportionment balanced the interests of large and small
states and balanced direct popular vote against representative vote.

How The Electoral System Works

Here's what the Constitution specifies:

Each State shall appoint, in such Manner as the Legislature thereof may
direct, a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress: but no
Senator or Representative, or Person holding an Office of Trust or Profit
under the United States, shall be appointed an Elector. (Art. II Sec. I)

The Electors shall meet in their respective states, and vote by ballot
for President and Vice-President, one of whom, at least, shall not be an
inhabitant of the same state with themselves; they shall name in their
ballots the person voted for as President, and in distinct ballots the
person voted for as Vice-President, and they shall make distinct lists of
all persons voted for as President, and of all persons voted for as
Vice-President and of the number of votes for each, which lists they shall
sign and certify, and transmit sealed to the seat of the government of the
United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and
House of Representatives, open all the certificates and the votes shall then
be counted;

The person having the greatest Number of votes for President, shall be
the President, if such number be a majority of the whole number of Electors
appointed; and if no person have such majority, then from the persons having
the highest numbers not exceeding three on the list of those voted for as
President, the House of Representatives shall choose immediately, by ballot,
the President. But in choosing the President, the votes shall be taken by
states, the representation from each state having one vote; a quorum for
this purpose shall consist of a member or members from two-thirds of the
states, and a majority of all the states shall be necessary to a choice. And
if the House of Representatives shall not choose a President whenever the
right of choice shall devolve upon them, before the fourth day of March next
following, then the Vice-President shall act as President, as in the case of
the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall
be the Vice-President, if such number be a majority of the whole number of
Electors appointed, and if no person have a majority, then from the two
highest numbers on the list, the Senate shall choose the Vice-President; a
quorum for the purpose shall consist of two-thirds of the whole number of
Senators, and a majority of the whole number shall be necessary to a choice.
But no person constitutionally ineligible to the office of President shall
be eligible to that of Vice-President of the United States. (Amendment XII,
adopted 1804)

Note that there is no mention of an Electoral College. The word
"college" appears nowhere in the Constitution (gotta love the Internet - it is
so easy to check things like that). The key points:

The State legislatures choose electors by whatever mechanism they
decide. The can do it themselves or delegate the authority to the voters.

The electors meet in their home states. That eliminates the
possibility of a college where all the electors get together to
hammer out a consensus.

After a particularly disharmonious administration with John Adams as
President and Thomas Jefferson as Vice President, followed by an acrimonious
election that ended up in the House of Representatives, it was obvious that
the original system - top vote getter is President and the runner up is Vice
President - just didn't work. The two offices had to be filled by people who
shared common principles. So the Twelfth Amendment provided for separate
votes for President and Vice President.

The two elections that ended up in the House of Representatives (1800
and 1824) showed that having the House decide the election wasn't nearly as
much fun as people thought it would be. If the House deadlocks, the Vice
President becomes acting President.

If there's no consensus on Vice President, then the Senate
chooses. This prevents the House from staging a deadlock and then hand
picking someone entirely different as Vice President to assume the acting
Presidency.

Is there any point in being Vice President if you're not eligible to
become President if the need arises? So let's plug that hole.

Only three times has an election gone to the House of Representatives:

In 1800, a plan to give Jefferson the Presidency and Aaron Burr the Vice
Presidency misfired and both got an equal number of votes. The deadlock
ended when Alexander Hamilton endorsed Jefferson (and incurred Burr's
wrath). This mess is what prompted the Twelfth Amendment.

The election of 1824 is the only "classical" one that went to Congress
because no candidate received a majority of electoral votes in the election
itself.

The
election of 1876 ended up being decided by Congress because of
disputes over the electoral votes from several states.

Why Electors?

So how to choose a chief executive? The British parliamentary system was for
Parliament to select the chief executive, but allowing Congress to select the
President seemed to open the door to too many inside deals, plus the President
would owe his job to Congress and be less able to act as a check on
Congressional power. Simple popular vote
was suspect because it was considered too likely that a demagogue might sway
public opinion. In keeping with the split powers everywhere else in the
Constitution, it probably seemed best to have a popular voice in the process,
but filtered by intermediate steps. So let the states pick the President, but by
a different route than their representatives in Congress. The states would appoint special officers to
elect the President. These officers had to be unconnected with any Federal
office themselves so they would not be able to strike deals with a candidate. If
the states opted to let the voters choose the electors, that was their decision,
and many did. Others did not. The last state to do away with state appointed
electors was South Carolina, just before the Civil War.

So, if there was a strong popular sentiment for a candidate, and the
candidate was a rational choice, the states could either accept the popular vote
or appoint electors that held the same sentiments. In principle, a state's
voters could lean strongly toward one candidate and the legislature could choose
electors to vote the opposite way. If they did, however, they might pay for it
in the next election. More likely the state would already have a legislature
that reflected the popular sentiments in the Presidential election. If the
candidate was a demagogue, the legislature could intervene and select electors
to vote for someone else. Considering all the safeguards, it was more likely
than not that the
electors would end up reflecting the popular will. And of course many states
allowed the voters to make the choice from the outset.

There was one final safeguard. If the field was too split, or there was a
tie, the House of Representatives would make the decision. At least some writers
have speculated that the hope was that the House would be the usual arbiter. If
there was a clear national consensus, the electors would determine the outcome,
but otherwise the House would do it. This only happened twice, in 1800 and 1824,
and it was not as smooth or harmonious as the Founding Fathers may have pictured.
(It happened a third time, in 1876, when electoral votes in several states were
disputed, but by then the Electoral College functioned in pretty much its modern
mode)

The Constitution never envisioned the voters electing the President.
The states, not the voters, elect the President. The states could, and
eventually all did, decide to delegate that authority to the voters, but that
was the states' choice. A lot of the mystery around the Electoral College
disappears once we realize the states elect the President. Contrary to
many attempts to explain the system, voters do not choose electors except as a
means of casting their state's vote. I, as a citizen of Wisconsin, vote
to choose how Wisconsin will cast its votes. A citizen of Massachusetts
or New Mexico has nothing to say about how Wisconsin votes, and I have nothing
to say about how their states vote.

Note that, in keeping with the notion that the states elect the President,
that if the election goes to the House, the States vote as States. Each
State gets one vote.

Why Not Democracy?

Democracy wasn't a highly thought of concept in 1789. It smacked a lot of mob
rule and sway by demagogues. Nothing in the Constitution forbids it, but
nothing requires it, either. The obvious way to avoid the perils of excessively
volatile democracy is to limit the vote to people who had a vested interest in
stability. Thus a lot of states had property requirements for voting, imposed
poll taxes, or applied literacy tests. New Jersey was the first state to grant
the vote to women and blacks although there was still a property requirement,
but the right was rescinded in 1807. Wyoming became the first territory, and
later, state, to grant women the vote permanently.

As time went by and we learned that states with direct voter selection of electors and broad
suffrage didn't descend into anarchy, more and more processes were democratized.
The Progressive Era introduced direct democratic innovations like the recall,
initiative, and referendum (ironically, Wisconsin, a state that prides itself on
its Progressive roots, lacks any provision for a voter initiative). In
1913, the 17th Amendment provided for direct election of voters. Some right-wing
blog sites complain that the 17th Amendment deprives the States of their last
direct control over Congress, but as usual they are unaware of history. By the
start of the 20th century, the full range of problems with state appointment of
senators had become apparent. If you think the rich have too much influence now,
imagine what it was like when robber barons could buy a senator (maybe that's
what the right-wing bloggers like about it). Senators would frequently be
repudiated by incoming state governments, creating conflicts over which Senator
should be seated. And on a number of occasions, states went without Senators
because the legislature was deadlocked. A number of states had already put the
election of Senators to referenda and confirmed the winner, so it took only 11
months to ratify the 17h Amendment.

Thanks to the Progressive Era reforms, there is more direct democracy in the
U.S. than many other democratic republics. Ironically, the biggest reversals of
democracy happen when the courts overturn initiative or referendum results. An
interesting end run around democracy was the 21st Amendment that repealed
Prohibition. It is the only Amendment to stipulate ratification by state
conventions, which were considered more likely to ratify than
legislatures, since they would
be more protected against voter retaliation from hard core prohibitionists.

Since the Constitution gives carte blanche to the states to select
electors, it's perfectly Constitutional for states to apportion their electors
according to the state or even national vote, rather than winner-take-all. In
principle, it would also be constitutional for States to resume direct
legislative selection of electors, though it would be interesting to see how
the courts coped with it. It's not wholly inconceivable that a state controlled
by one party might designate electors in defiance of the popular vote, although
that would be the political equivalent of launching a nuclear war.

Florida, 2000

The most recent wave of outrage over the Electoral College came in 2000, when
George Bush narrowly won Florida, and the election, from Al Gore, even though
Gore received half a million more popular votes nationally. The Florida recount process was
finally terminated on December 11 by the Supreme Court, partly on 14th Amendment
grounds (uneven treatment of recounts) and partly on Electoral College issues.
Federal Law states that electors selected more than six days before the
scheduled counting of electoral votes are to be regarded as conclusively chosen.
Since the electoral votes were to be counted on December 18, electors could be
selected without challenge up to December 12, the day after the ruling. The
court ruled that there was insufficient time to perform the desired recounts and
select electors in a way that would preserve Florida's right to choose them
without Congressional interference.

Critics of the ruling ignore the Constitutional fact that the Constitution
gives state legislators, and nobody else, the right to decide on electors
("in such Manner as the Legislature thereof may direct"). So, had the Court not
cut off the process, one of three things could have happened:

Florida would have sent in last-minute, disputed electoral votes.
Congress would have had to resolve the issue, and both houses of Congress
were controlled by Republicans, so Bush would probably have won. 1876 deja
vu all over again.

Florida would have cast no electoral votes, giving the election
to Gore. Very unlikely given that the Florida legislature was controlled by
Republicans.

Florida could have convened an emergency legislative session and
appointed a slate of electors in time to meet the deadline, or they could
simply have confirmed the Republican electors. Either way the Florida
electors would have been Republican.

Actually, when Congress convened, a number of Congressmen did challenge the
Florida electoral votes. However, challenges to electoral votes have to be
co-sponsored by a Congressman and a Senator (a rule drafted in the aftermath of
1876), and no Senators came forward.

Although the Supreme Court's ruling has been called blatantly political and
corrupt by Gore supporters, it is interesting to speculate what might have
happened had the Court ruled that the recounts should continue. Faced with the
prospect of missing the deadline for choosing electors, might the Florida
Legislature have simply appointed electors and then defended its actions on the
Constitutional grounds that the State chooses the electors "in such Manner as
the Legislature thereof may direct"? Who would have decided the case, given that
the Supreme Court would have had a conflict of interest? What if the Democrats
in the Florida Legislature stalled the selection until too late? If the electors
had been challenged, the Republicans controlled Congress and could have rejected
the challenge. Had the election gone to the House, the Republicans were in
control, so Bush would have won, 28 states to 17, with 4 split and one
independent.

Oh, this cheerful note. If the House had, through some arcane fluke,
deadlocked, then the Senate would have named the Vice President as acting
President. Say it with me: President Cheney.

There's just not a plausible scenario that would have allowed Gore to win.